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In the Matter of Nigel Joseph v. Darwin Laclair

State of New York Supreme Court, Appellate Division Third Judicial Department


November 17, 2011

IN THE MATTER OF NIGEL JOSEPH, PETITIONER,
v.
DARWIN LACLAIR, AS SUPERINTENDENT OF FRANKLIN CORRECTIONAL FACILITY, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: September 28, 2011

Before: Peters, J.P., Rose, Malone Jr., Stein and Egan Jr., JJ.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Franklin County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.

Petitioner disobeyed a correction officer's directive to perform his porter duties and, as a result, was charged in a misbehavior report with refusing a direct order. Following a tier II disciplinary hearing, petitioner was found guilty of the charge, and the determination was affirmed upon administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The detailed misbehavior report provides substantial evidence supporting the determination of guilt (see Matter of Applewhite v Goord, 22 AD3d 985, 986 [2005]; Matter of Loper v Greene, 19 AD3d 947, 948 [2005], lv denied 5 NY3d 713 [2005]). Petitioner's claim that he did not hear the order because he was arguing with another inmate presented a credibility issue for the Hearing Officer to resolve (see Matter of Lamage v Fischer, 58 AD3d 1045, 1046 [2009]; Matter of Raqiyb v Fischer, 50 AD3d 1287, 1288 [2008]). Therefore, we decline to disturb the determination.

Peters, J.P., Rose, Malone Jr., Stein and Egan Jr., JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

ENTER:

Robert D. Mayberger Clerk of the Court

20111117

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